43 N.J. Eq. 34 | New York Court of Chancery | 1887
The object of the bill in this case is to procure an injunction restraining the defendant from pleading the statute of limitations to an action at law brought by the complainant against the defendant. To the bill as originally framed the defendant interposed a demurrer, alleging want of equity, and on the question thus raised this court pronounced judgment in favor of the complainant, holding, the bill to be sufficient and overruling the demurrer. Lamb v. Ryan, 13 Stew. Eq. 67. But, on appeal, the court of errors and appeals declared the bill to be insufficient, and reversed the judgment of this court. Martin v. Lamb, Id.
The case made by the original bill may be summarized as follows: The complainant, in 1874, made a written contract with the executors of John Keighry, deceased, for the purchase ■of certain lands for $3,900, the same to be conveyed to her clear ■of all encumbrance except a mortgage of $600; she paid ten per cent, of the purchase-money at the time the contract was -signed; at the time and place fixed for the performance of the ■contract she tendered the balance of the purchase-money and demanded a deed; the executors failed to perform, alleging that they could not give her such a title as the contract required, because the lands were subject to an unpaid assessment, and also because the widow of their testator had not released her estate in dower; the complainant, in May, 1875, brought a suit in this court against the executors for the specific performance of the contract; they answered denying the complainant’s right to a decree, and the case, on the issue thus raised, was brought to a hearing; the bill alleges that the executors, on the 25th of April, 1877, obtained, “ on their own behalf and motion,” a decree of specific performance; the complainant, subsequently, in December, 1878, and while the decree of specific performance was still in force, brought an action at law against the executors to recover the $390 which she had paid on the purchase-money; the executors, in April, 1879, procured an injunction restraining the further prosecution of this suit; the lands, which were the subject of the contract, were sold at sheriff’s sale in October, 1883, under a decree of this court, founded on the $600 mortgage and subject to which the complainant had agreed to take title to the lands; the injunction, restraining the further prosecution of the suit at law, which the complainant instituted in December, 1878, was dissolved in December, 1883, and that suit was subsequently discontinued by the complainant, because the executor, against whose devisee she is seeking a remedy in this suit, had died in
These are the facts on which the complainant’s right to relief, under her bill as originally framed, rested. Her amendments present three additional facts: First, she charges that she was induced to enter into the contract of purchase by fraud. She says that, although the executors knew that the widow would not release her estate in dower, and also that the lands which were the subject of the contract, were subject to other encumbrances besides the $600 mortgage, they nevertheless falsely assured her that the widow would release, and also that the lands were not subject to any other encumbrance than the mortgage. She charges, secondly, that the executors procured the injunction which was issued in April, 1879, fraudulently. She says that they knew when they applied for that writ that they had previously, by their own fraudulent misconduct, placed themselves in a position which rendered it impossible for them to perform the contract, • And thirdly, she charges that the- executors, by wrongfully misappropriating the funds in their hands to their own use, have rendered the estate of John Keighry, deceased, insolvent. The amendments do not, in my judgment, change in the slightest degree the case as it stood on the bill as originally framed. This suit, as well as the complainant’s present action at law, is not brought against the executors, but against the devisee of one of them who died in May, 1881, the other being, as is alleged, a person of no responsibility.
The power of a court of equity to prevent a defendant, by injunction, from setting up the statute of limitations as a defence to an action at law, which he has wrongfully procured to be restrained until sufficient time has elapsed to render such a defence
When the complainant’s cause of action accrued in 1874, by •the refusal of the executors to convey the lands in fulfillment of Iheir contract, she was at liberty to seek redress by the pursuit
There can be no doubt that the injunction granted in April, 1879, restraining the complainant from further prosecuting the action at law, which she brought in December, 1878, was rightfully granted. While the decree in the specific performance suit continued in force, the complainant had no right to a return of the purchase-money she had paid, and this court, having given her, at her own instance, relief against the executors for the wrong of which she complained, was bound, on a proper application being made, showing that, notwithstanding relief of the kind she had asked had been given to her, she was nevertheless, vexatiously, and in utter disregard of the decree she had obtained in this court, pursuing the executors in another tribunal, to stop her. It was not this injunction which deprived her of her remedy at law, but she deprived herself of it, by procuring a decree of this court, which operated, so long as it remained in force, as an extinguishment of her right of action at law.
The demurrer must be sustained, with costs.